YX v NSW Medical Board
[2010] NSWADTAP 55
•16 August 2010
Appeal Panel - Internal
CITATION: YX v NSW Medical Board [2010] NSWADTAP 55 PARTIES: APPELLANT
RESPONDENT
YX
NSW Medical BoardFILE NUMBER: 109011 HEARING DATES: 15 June 2010 SUBMISSIONS CLOSED: 15 June 2010
DATE OF DECISION:
16 August 2010BEFORE: Hennessy N - Magistrate (Deputy President) CATCHWORDS: COSTS – procedural fairness – findings not based on evidence – legality of discretion DECISION UNDER APPEAL: YX v NSW Medical Board [2010] NSWADT 12 FILE NUMBER UNDER APPEAL: 093157 LEGISLATION CITED: Privacy and Personal Information Protection Act 1998
Administrative Decisions Tribunal Act 1997CASES CITED: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
AT v Commissioner of Police [2010] NSWCA 131
Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456
World Best Holdings Ltd v Sarker & Anor [2004] NSWSC 935 Jones v Ekermawi [2009] NSWSC 143
K v K [2000] NSWSC 1052
Abdul-Karim v the Council of the New South Wales Bar Association [2005] NSWCA 93REPRESENTATION: APPELLANT
RESPONDENT
In person
J Lucy, solicitorORDERS: 1. Leave for the appeal to extend to the merits of the Tribunal’s decision is refused
2. The appeal is dismissed.
REASONS FOR DECISION
Introduction
1 This is an appeal against a decision of the Tribunal ordering YX to pay the costs of the New South Wales Medical Board in relation to attendances at two planning meetings in 2009. YX is entitled to appeal on any question of law. He needs the Appeal Panel’s permission for the appeal to be extended to the merits of the Tribunal’s decision: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113(2)).
2 The background to this appeal is that on 2 March 2009 YX applied for a review of the conduct of the New South Wales Medical Board under the Privacy and Personal Information Protection Act 1998. On 1 April 2009 the solicitors for the Medical Board wrote to YX requesting particulars of his claims. On 21 April 2009 a planning meeting was held. Mr Duong, solicitor, attended on behalf of YX and Ms Lucy from the Crown Solicitors Office and Ms Sharp from the Medical Board attended on behalf of the respondent. Ms O'Dowd represented the Privacy Commissioner. At that planning meeting, the Judicial Member noted that YX had not responded to the Medical Board’s request for further particulars. Directions were made for the filing and service of further material and the matter was set down for a further planning meeting on 2 June 2009. Neither YX nor his legal representative appeared at the second planning meeting. The Judicial Member made further directions and listed the matter for the hearing of an application for dismissal and for costs.
3 Those applications were heard on 20 July 2009. The Tribunal reserved its decision. On 14 August 2009, prior to a decision being handed down, YX filed a notice of discontinuance. The parties were unable to reach agreement on the discontinuance and the matter was listed again on 17 September 2009. The NSW Medical Board did not oppose the discontinuance but sought orders for costs. The Tribunal made the following order:
The Applicant is to pay the costs of the Respondent, as agreed or assessed, in regard to the planning meetings held on 21 April 2009 and 2 June 2009.
4 The Tribunal refused the Medical Board’s application that YX pay the costs of the dismissal application.
Tribunal’s decision
5 The Tribunal’s reasoning appears at [52] to [56] of its decision:
52 . . . I agree with Ms Lucy that the Applicant should pay the Respondent’s costs in regard to the planning meeting held on 21 April 2009 and the planning meeting held on 2 June 2009.
53 I agree that the planning meeting held on 21 April 2009 was of little value in progressing the matter because of Mr Duong’s lack of instructions. The Respondent incurred costs in attending the planning meeting and it is my view that the Applicant should pay those costs.
54 Similarly, the matter was not progressed by the planning meeting held on 2 June 2009 because there was no appearance on behalf of the Applicant at that planning meeting. The Respondent incurred costs in attending the planning meeting and it is my view that the Applicant should pay those costs.
56 In my view, it is fair to award costs in relation to each of the planning meeting.55 I note the Applicant’s argument that the Tribunal and the Privacy Commissioner raised issues at those meetings and made suggestions that resulted in resolution of some issues. Notwithstanding that argument, it is my view that the Applicant could have prevented most of the Respondent’s costs in attending the planning meeting if he had complied with the timetable previously set.
Grounds of appeal
6 The questions of law that YX has identified are:
1. Did the Tribunal make a finding of fact where there was no evidence or insufficient evidence to support that finding?
2. Did the Tribunal give him an adequate opportunity to present his case?
3. Did the Tribunal give him an adequate opportunity to respond to information against him?
4. Did the Tribunal appropriately and fairly exercising its discretion to order costs?
Issues
7 It is not in dispute that these grounds arguably identify a question of law. The first issue is whether the Tribunal made an error of law in relation to those questions. The second issue is whether leave should be granted to extend the appeal to the merits of the Tribunal’s decision.
No evidence or insufficient evidence
8 Making a finding of fact for which there is no evidence is an error of law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. YX submitted that there was no evidence to support the Tribunal's finding that Mr Duong had not been adequately instructed when he appeared on his behalf on 21 April 2009. The Tribunal’s findings on that point are at [5] and [53].
[5] However, Mr Duong had no instructions, and had not been given a copy of the internal review application or the internal review determination. Due to his lack of instructions, the planning meeting was of little value in preparing the matter for hearing.
. . .
[53] I agree that the planning meeting held on 21 April 2009 was of little value in progressing the matter because of Mr Duong’s lack of instructions.
. In their written submissions to the Tribunal filed on 15 June 2009, the Medical Board submitted that YX had failed to provide any instructions to Mr Duong when he attended the first planning meeting. In his written response, YX said, “Mr Duong was instructed as best as was possible in the circumstances at the time. He was instructed for an initial directions hearing only.” YX attached a letter written by Mr Duong dated 23 April 2009 which set out what was said in the planning meeting and the directions that were made. Mr Duong commenced that letter by stating that:
We confirm that in accordance with your instructions we attended the Administrative Decisions Tribunal (ADT) before Presiding Member Mr Montgomery on 21 April 2009, for the planning meeting. . .
We discussed the issues raised in your application, as follows:
10 The letter then sets out the submissions that each party made including submissions from Mr Duong in the following terms:
We then submitted that it would be appropriate for there to be a notation on the front of the Barclay report to note that your correspondence is annexed to it, so that anyone who reads the report is aware that the report is amended. Mr Montgomery agreed with our proposal and Ms Sharp made a note of the proposed notation and advised that she would confirm this aspect in writing.
. . .
Mr Montgomery asked, subject to the proper notation on the Barclay report, whether this would resolve this issue, or whether there were other remedies that you sought.
11 The letter went on to report to YX the discussion surrounding three other complaints and the directions that Mr Montgomery made, namely:
1. That the Crown Solicitor’s Office provide a request for particulars.
2. That the applicant respond to the request for particulars by 8 May 2009.
3. That the respondent respond by 29 May 2009.
4. That the matter be listed for a directions hearing on 2 June 2009 at 11.00 am.
12 Conclusion
. The Tribunal found that Mr Duong had ‘no instructions’ and that his lack of instructions meant that the planning meeting was of little value in progressing the case. Mr Duong’s letter to YX discloses that while Mr Duong was formally instructed to appear at the planning meeting on behalf of YX, he did not have instructions about the particulars of YX’s claim or what would satisfy YX in terms of resolving the application. There was evidence before the Tribunal to support its finding that Mr Duong lacked instructions in the sense that, while formally instructed to appear, he was not able to tell the Tribunal the particulars of YX’s claim or what would be needed for it to be resolved. The Tribunal’s finding on this point does not disclose an error of law.
Inadequate opportunity to present case
13 The Tribunal is bound by the rules of procedural fairness. In particular it must take “. . . such measures as are reasonably practicable to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings”: ADT Act, s 73(4)(c).
14 When the Medical Board foreshadowed that it wished to make an application for dismissal, the Tribunal directed it to file and serve such an application by 16 June 2009. The application, which was filed on 15 June and served on YX, included an application for costs of the two planning meetings as well as statements from Ms Lucy and Ms St Hill, the Legal Director of the Medical Board. The Tribunal also directed YX to file and serve any reply by 30 June 2009. He filed and served a seven page submission and a one page statement on 26 June 2009. The hearing took place on 17 September and YX appeared by phone and made oral submissions. We note that despite the fact that the Tribunal’s reasons for decision record that Mr Duong represented YX at the hearing on 17 September 2009, Mr Duong ceased to act for YX on 14 May 2009.
15 YX did not identify how the Tribunal had failed to give him the fullest opportunity practicable to be heard and to have his submissions considered. I am satisfied that the Tribunal complied with its obligations in relation to procedural fairness and that no error of law has been made on that count.
Inadequate opportunity to respond to adverse information
16 In relation to this question of law, YX referred in his submissions to “a rushed telephone call to me in North Queensland” saying that that “does not constitute an adequate opportunity to present and respond to the costs application.” I assume that this is a reference to the fact that YX attended the hearing 17 September 2009 by phone. The Tribunal often accommodates parties by conducting hearings by phone where appropriate. As YX does not live in New South Wales, it was more convenient for him to participate by phone. That was his choice. The Tribunal did not make an error of law by permitting YX to appear by phone rather than in person, nor did the fact that he appeared by phone mean that he did not have an adequate opportunity to respond to adverse information.
Inappropriate exercise of discretion
17 YX submitted that the Tribunal misinterpreted the boundaries as to what constitutes an exception to the general rule regarding costs orders. The Tribunal set out s 88 of the ADT Act, which gives the Tribunal power to make an order for costs, at [13] of its reasons for decision. The relevant provisions of s 88 are as follows:
(1) Each party to proceedings before the Tribunal is to bear the party’s own costs in the proceedings, except as provided by this section.
(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:
(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or
(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or
(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or
(iv) causing an adjournment, or
(v) attempting to deceive another party or the Tribunal, or
(vi) vexatiously conducting the proceedings,
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
(d) the nature and complexity of the proceedings,
(e) any other matter that the Tribunal considers relevant.
18 YX submitted that the Tribunal had “exceeded reasonable discretion” and failed to make any cogent argument that he had wrongfully conducted himself in the terms set out in paragraphs (a) to (e) of s 88(1A). In particular YX submitted that he should not have to pay for both the planning meetings in circumstances where he had offered to withdraw the entire proceedings because ‘more substantive proceedings’ had been initiated in the Equal Opportunity Division of the Tribunal. According to YX those proceedings would have entirely subsumed the privacy matters.
19 In AT v Commissioner of Police [2010] NSWCA 131, Basten JA, referred at [33] to ‘the force of the general principle that each party should bear its own costs in the Tribunal, a principle applicable at both first instance and before the Appeal Panel’. His Honour then said:
Although an order varying the general rule may be made “only if” the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order. The criterion of “fairness” will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. The circumstances in which fairness may be identified are indicated by the specific attributes listed in sub-s (1A), but subject to the generality of paragraph (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b)-(g) of the [ADT Act].
20 The nature of the Tribunal’s jurisdiction is to hear and determine complaints made under the AD Act. One of the objects of the ADT Act is ‘to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair: ADT Act, s 3(b). The Tribunal has a discretion to award costs but only if it is satisfied that it is fair to do so having regard to the matters set out in s 88(1A). The reason the Tribunal gave for ordering costs in relation to the planning meeting on 21 April 2009 was because given Ms Duong’s lack of instructions, it was of little value in progressing the matter. While the Tribunal did not identify any particular factor in s 88(1A) as the basis for the decision, s 88(1A)(e) allows the Tribunal to have regard to “any other matter that the Tribunal considers relevant”. The Tribunal’s finding that Mr Duong’s lack of instructions meant that the matter could not be progressed in a way which would otherwise have been possible, is a matter that is relevant when determining whether to award costs. While the general rule is that each party is to pay their own costs, and the objects of the ADT Act include ensuring that it is accessible, the Tribunal did not make an error of law by exercising its discretion to order costs in relation to the first planning meeting.
21 The reason the Tribunal gave for ordering costs in relation to the Planning Meeting on 2 June 2009 was that YX did not appear. Failing to appear is either a failure to comply with a direction of the Tribunal with reasonable excuse (s 88(1A)(a)(i)) or “any other matter that the Tribunal considers relevant” (s 88(1A)(e). Again, taking into account the general rule about costs, the nature of the jurisdiction and the objects of the ADT Act, the Tribunal did not make an error of law by exercising its discretion to order costs in relation to the second planning meeting.
Leave to extend to the merits
22 Legal principles. It is not necessary for the Appeal Panel to first identify an error of law before granting leave for an appeal to be extended to the merits of the Tribunal’s decision: Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456. The onus of proof lies on the party applying for leave and the standard of proof is on the balance of probabilities: World Best Holdings Ltd v Sarker & Anor [2004] NSWSC 935 at [25] per Sully J. The discretion is open and unfettered but must be exercised in a fair and just manner having regard to the purpose of the relevant legislation: Jones v Ekermawi [2009] NSWSC 143 at [13]. Certain inferences can be drawn from the fact that leave is required. They include the fact that the need for leave is a ‘control filter’ designed, among other things, to protect respondents from the cost of a full hearing of appeals which should not properly be entertained: World Best Holdings Ltd v Sarker & Anor, per Sully J at [25]. Circumstances which may justify leave being granted include where the Tribunal has gone about its fact finding process in such an unfair or unorthodox manner that it is likely to produce an unfair result: K v K [2000] NSWSC 1052 at [10] to [15]. However, “merely to suggest that there is a bona fide challenge to a decision of fact is not enough to require the Appeal Panel to grant leave to appeal.”: Abdul-Karim v the Council of the New South Wales Bar Association [2005] NSWCA 93 at [34] per Mason P (Ipp JA and Hunt AJA agreeing).
. The grounds on which YX relies were that:
1. the circumstances did not justify a costs order because the time was not wasted;
2. he was not aware of a new Costs Guideline published by the Tribunal until after the decision had been handed down.
24 According to YX the time spent at the first planning meetings was not wasted because directions were given to the Medical Board which gave rise to real changes in the conduct of the respondents. In particular the Tribunal corrected the Medical Board's ‘misconception’ of YX's position in relation to the ‘false’ psychiatric report. Furthermore, if time was wasted, it was not wasted on account of anything that YX did. We have not taken into account the assertion in YX's submissions that neither Mr Duong nor Ms O’Dowd thought that the 21 April 2009 planning meeting was wasted. There was no evidence before the Tribunal of either Mr Duong or Ms O’Dowd’s view on that subject.
25 The Tribunal dealt with this issue briefly saying, at [55], saying that:
I note the Applicant’s argument that the Tribunal and the Privacy Commissioner raised issues at those meetings and made suggestions that resulted in resolution of some issues. Notwithstanding that argument, it is my view that the Applicant could have prevented most of the Respondent’s costs in attending the planning meeting if he had complied with the timetable previously set.
26 The evidence discloses that several issues were discussed in the first planning meeting. The issue of a notation of the Barclay report was discussed, but Mr Duong did not have instructions as to whether such a notation would satisfy YX. Directions were made for YX to provide particulars of his application, a request that had previously been made but not complied with. At the second planning meeting, the Tribunal directed the respondent to file and serve an application for dismissal by 16 June 2009 and for the applicant to file and serve any reply by 30 June 2009. The matter was listed for a hearing in relation to the dismissal application on 20 July 2009.
27 In the application for summary dismissal the Medical Board submitted that it was fair to award costs having regard to certain matters listed in s 88(1A) of the ADT Act. YX was on notice that they were the provisions on which the Medical Board relied. The fact that he was not aware that the Tribunal had issued a guideline in relation to s 88A is not a sufficient reason to grant leave to extend the appeal to the merits of the Tribunal's decision. The Guideline does not change the legal effect of the provision and there is no obligation on the Tribunal to draw a party's attention to such guidelines.
28 Conclusion. The Tribunal did not make an error of law in awarding costs against YX. While minds may legitimately differ in relation to the circumstances which would justify such an award, the Tribunal afforded YX procedural fairness and exercised its discretion within the bounds required by law. While YX regards the Tribunal’s decision as unfair, it made its findings on the basis of relevant and reliable evidence. In those circumstances, leave for the appeal to extend to the merits of the Tribunal’s decision is refused.
2. The appeal is dismissed.1. Leave for the appeal to extend to the merits of the Tribunal’s decision is refused.
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